Brendale v. Confederated Tribes & Bands of Yakima Indian Nation

RESPONDENT: Confederated Tribes & Bands of Yakima Indian Nation
LOCATION: Dallas City Hall

DOCKET NO.: 87-1622
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 492 US 408 (1989)
ARGUED: Jan 10, 1989
DECIDED: Jun 29, 1989

Jeffrey C. Sullivan - on behalf of the Petitioners
Tim Weaver - on behalf of the Respondents

Facts of the case


Media for Brendale v. Confederated Tribes & Bands of Yakima Indian Nation

Audio Transcription for Oral Argument - January 10, 1989 in Brendale v. Confederated Tribes & Bands of Yakima Indian Nation

William H. Rehnquist:

We'll hear argument next In No. 87-1622, Philip Brendale versus Confederated Tribes and Bands of the Yakima Indian Nation, and companion cases.

Mr. Sullivan, you may proceed whenever you're ready.

Jeffrey C. Sullivan:

Mr. Chief Justice, and may it please the Court:

Yakima County is the second largest county in the State of Washington.

The Yakima Indian Reservation consists of--

William H. Rehnquist:

Largest geographically or population?

Jeffrey C. Sullivan:


There's approximately 180,000 people in Yakima County.

25,000 reside on the reservation.

5,000 of those are Indians and 20,000 are non-Indians.

The reservation itself consists of approximately 1.3 million acres, 80 percent of which is owned in trust, 20 percent is owned by non-Indians in fee simple, or approximately 260,000 acres.

There are 10,467 separate parcels of deeded land on the reservation, 500 miles of roads; county roads, there's a state highway and a lot of BIA roads.

The issue in this case is the scope of regulatory control, civil regulatory control, that a tribe can exercise over non-members on deeded land.

At the heart of this case is the tension that's created by two sets of promises made by Congress.

On the one hand, you have the promise that Congress made to the Indians through the treaties.

On the other hand, you have the promise that Congress made to the citizens whom they invited onto those lands through the General Allotment Act.

We believe this case involves the application of this Court's ruling in Montana versus United States.

In Montana, the Court was called upon to determine the extent of power that the tribe still retained in the area of civil regulation.

In that case we were dealing with the hunting and fishing rights of those non-members on deeded land.

This Court, in examining the prior opinions of the Court, including Wheeler and Oliphant, determined first that the exclusive use and benefit language of the Crow treaty did not give them the right to control those non-members.

They did not have the inherent right, nor did they have the treaty right.

The Court recognized that, Oliphant, the intent of Congress, that the inherent right had been removed, particularly with respect to the non-Indian... removed from the tribe, this inherent power with respect to non-Indians on their own land.

We submit that Montana actually, however, did establish a bright line test, the bright line test that we are asking this Court to impose.

The Court said--

How did the case ever get here if it's so bright?

Jeffrey C. Sullivan:

--Well, because the Ninth Circuit, we submit, did not read it correctly.

And in fact, the court misperceived it dramatically.

The court said, meaning the Ninth Circuit, that in fact the treaty provided those rights and that the tribe had inherent rights, and then went on to rule that... adopt a per se rule of jurisdiction for tribes based upon its reading of Montana.

The court said... I mean, the Montana language is:

"Though Oliphant only determined the inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of non-members of the tribe. "